Renyana-stahl Anstalt V. Alasdair Macgregor And Another
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Date | 29 March 2001 |
| Docket Number | P181/12 |
| Court | Court of Session |
| Published date | 29 March 2001 |
| OUTER HOUSE, COURT OF SESSION | |
| P181/12/99
| OPINION OF LORD MACFADYEN in the Petition of RENYANA-STAHL ANSTALT Petitioners; against ALASDAIR MacGREGOR and ANOTHER Respondents: ________________ |
Petitioners: Lindhorst; Morton Fraser (for J.M. & J. Mailer, Stirling)
Respondents: Clancy; The Anderson Partnership
29 March 2001
Introduction
[1]In this petition the petitioners primarily seek rectification under section 8(1)(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 ("the 1985 Act") of a disposition which they granted in favour of the respondents in 1997. They also seek declarator on a related matter. The respondents plead that the petitioners' averments are irrelevant and lacking in specification. On that basis they seek dismissal of the petition. They also plead that the prayer for declarator is incompetent. On that basis they seek dismissal of that part of the prayer. The petitioners plead that the answers are irrelevant and lacking in specification, and that accordingly the prayer of the petition should be granted de plano. They also plead that certain passages in the answers are irrelevant and lacking in specification, and should be excluded from probation. The petition called before me for a hearing, and submissions were made in support of those pleas.
The Legislation
[2]Section 8 provides inter alia as follows:
| "(1) | Subject to section 9 of this Act, where the court is satisfied, on an application made to it, that - | ||
| (a) | a document intended to express or to give effect to an agreement fails to express accurately the common intention of the parties to the agreement at the date when it was made; ... | ||
| it may order the document to be rectified in any manner that it may specify in order to give effect to that intention. | |||
| (2) | For the purpose of subsection (1) above, the court shall be entitled to have regard to all relevant evidence, whether written or oral". |
No issue under section 9 arises in the present case.
The Pleadings
[3]It is convenient before turning to the circumstances on which the petitioners rely in making their application for rectification to note certain background circumstances which are disclosed in the pleadings and in respect of which the parties are not in dispute. The petitioners, who are a company incorporated under the laws of the Principality of Liechtenstein, are the owners of Drumlean Farm, Drumlean Estate, Aberfoyle. The disposition which the petitioners seek to have rectified was a disposition of subjects known as Glenclelland Bungalow, which was part of Drumlean Estate. The planning permission for the construction of Glenclelland Bungalow was conditional upon an agreement under section 50 of the Town and Country Planning (Scotland) Act 1972 providing that the occupant of the bungalow was to be "wholly or mainly employed in the management of Drumlean Estate". The respondents are husband and wife. The first respondent was employed by the petitioners as manager of Drumlean Estate. That employment came to an end in April 1999.
(a) Rectification
[4]The petitioners aver, and the respondents admit, that by missives of sale and purchase dated 9 May, 25 June, 8 August and 3 September 1996, as amended by further letters dated 19 February and 9 April 1997, the petitioners agreed to sell and the respondents agreed to purchase certain ground and the bungalow thereon known as Glenclelland Bungalow, at Drumlean Estate, Aberfoyle. The missives are Nos. 6/1-6 of process, and are incorporated in the petitioners' pleadings.
[5]The dispute between the parties arises out of the terms of clause (f) of the letter of 9 May 1996, which was in the following terms:
"The Disposition to be granted in favour of our clients [the respondents] will include a compulsory right of pre-emption in favour of your clients [the petitioners] at the option of our clients. Upon request by our clients, your clients will be obliged to re-purchase the subjects at the market value applicable at that time and excluding the terms of any Section 50 Agreement. However, if our client, Alasdair MacGregor, leaves your clients' employment prior to repayment of the sums due under the said Standard Security [which in terms of clause (e) the respondents were to grant in favour of the petitioners], then our clients will be obliged to sell the subjects to your clients at a price representing the sums paid to your clients under the terms of the Standard Security at that date plus an additional sum of £10,000 representing the sums directly invested by our clients".
[6]It is further averred by the petitioners, and admitted by the respondents, that the respondents' agents prepared a disposition, which was forwarded to the petitioners' agents and thereafter engrossed; that the Disposition was duly executed in Germany on 14 April 1997; that the Standard Security was executed by the respondents on 10 March 1997; and that both deeds were recorded in the Division of the General Register of Sasines for the County of Perth on 12 May 1997. The Disposition is No. 6/7 of process, and it too is incorporated in the petitioners' pleadings.
[7]The passage in the Disposition with which the application for rectification is concerned was in the following terms:
"Also under the following burdens, conditions and others, namely:- In the event that our disponees of (sic) their foresaids formally serve notice upon us or our successors and assignees requiring that we purchase all or part of the subjects hereinbefore disponed we shall be obliged to proceed with the purchase at a price representing the market value of the subjects at the date of service of such notice but specifically excluding the effects of (sic) the market value of any section 50 Agreement imposed upon the subjects by the Local Authority and in force at that time: The market value shall be established by independent Chartered Surveyor to be mutually appointed will be made by the chairman for the time being of the Institute of Chartered Surveyors for Scotland. On receipt of said notice we shall be obliged to proceed with the purchase and to pay over the purchase price within a mutually agreed period but in any event no later than one hundred and eighty days following receipt of said notice".
There then follows a declaration that the provision quoted is to be a real burden. The passage quoted contains a number of obvious misprints. It seems clear to me that the word following "disponees" in the second line should be "or"; that the word following "effects" in the sixth line should be "on"; and that in the sentence dealing with the determination of market value some words (perhaps "provided that failing mutual agreement the appointment") have been omitted after the words "mutually appointed". These errors are, however, immaterial for the purposes of the issue debated before me.
[8] The petitioners aver, in article 3 of the statement of facts in the petition, that:
"The Disposition accordingly did not give effect to the common intention of the parties. Its terms are inconsistent with the terms of the Missives in relation to the nature of the obligation it imposes. It imposes as a real burden obligations intended by the Missives to be regulated only as personal rights between the parties. Had the petitioners been aware of the errors in the Disposition, the Disposition would not have been executed".
In article 4 the petitioners' averments continue:
"The petitioners seek rectification of the Disposition in terms of section 8(1)(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 in respect that at the time of executing the Disposition, it was the common intention of the parties, as reflected in the Missives, that there would be mutual rights personal to the parties in relation to the potential repurchase of the subjects by the petitioners".
[9]The respects in which the petitioners seek to have the disposition rectified are identified in averment in article 4, and those averments are echoed in branch (1) of the prayer. In the first place the petitioners seek to have the disposition rectified by the deletion of the passage quoted in paragraph [7] above. In the second place, they seek to have inserted, immediately before the entry clause, the following:
"And it is further declared that in the event that our said disponees exercise their option as agreed between us by serving notice upon us requiring us to purchase the subjects hereinbefore disponed from them, we shall be obliged to purchase the subjects at a price representing the market value of the subjects but excluding the effects upon the said value of any Section 50 Agreement then in force; However and notwithstanding the foregoing, in the event that the said Alasdair MacGregor leaves his employment with us prior to repayment of the sums due by our disponees in terms of a Standard Security granted by them in our favour on 10 March 1997 and to be recorded of even date herewith, then our said disponees shall be obliged to sell the subjects hereinbefore disponed to us at a price of £10,000 plus the sums paid to us in terms of the said Standard Security".
[10]The respondents aver, in answer 3:
"Explained and averred that following the conclusion of the missives a draft Disposition was prepared by the respondents' agents and forwarded to the petitioners' agents. Its terms as executed and recorded were revised and subsequently approved by the petitioners' agents. The engrossment of the Disposition was seen and read by Herr Brach [the petitioners' representative] before he executed it on behalf of the petitioners. The petitioners accordingly agreed to the terms of the disposition as it was executed and recorded.
Clause (F) of the original offer was accordingly superseded by the agreement of the Parties. The terms of the missives were superseded in other respects by the terms of the Disposition, for example in regard to the date of entry".
The petitioners' response to...
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